Republicans: You Lost.

Republicans: You Lost.

Scott Horton:

“Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era. A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel (OLC) in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pull back last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward. (…)

The Justice Department source confirms to me that Brennan has consistently opposed making public the torture memos — and any other details about the operations of the extraordinary renditions program — but this source suggests that concern about the G.O.P.’s roadblock in the confirmation process is the principle reason that the memos were not released. Republican senators have expressed strong reservations about their promised exposure, expressing alarm that a critique of the memos by Justice’s ethics office (Office of Professional Responsibility) will also be released. “There was no ‘direct’ threat,” said the source, “but the message was communicated clearly — if the OLC and OPR memoranda are released to the public, there will be war.” This is understood as a threat to filibuster the nominations of Johnsen and Koh. Not only are they among the most prominent academic critics of the torture memoranda, but are also viewed as the strongest advocates for release of the torture memos on Obama’s legal policy team.

A Republican Senate staffer further has confirmed to me that the Johnsen nomination was discussed at the last G.O.P. caucus meeting. Not a single Republican indicated an intention to vote for Dawn Johnsen, while Senator John Cornyn of Texas was described as “gunning for her,” specifically noting publication of the torture memos.

That’s a lot more plausible than Newsweek’s claim that the administration does not want to embarrass countries whose names it could simply redact. It’s also completely appalling.

For one thing, the slurs on Koh and Johnsen are vile. They are widely respected legal scholars. For heaven’s sake, Ted Olsen, Bush’s solicitor General and his lawyer in Bush v. Gore, supports Koh:

“The President and the Secretary of State are entitled to have who they want as their legal adviser,” Olson said in a phone interview with me.

Olson was sharply dismissive of claims that Koh is too solicitous of international law. While he declined to discuss the specifics of the case against Koh, much of which has been already debunked, he pushed back hard against the broader claim that Koh’s regard for international law is cause for suspicion.

“I have the greatest respect for Harold Koh,” Olson said. “He’s a brilliant scholar and a man of great integrity.”

Besides the ugliness of the attacks, what the Republicans are doing is really unprecedented. First, the President has traditionally been given deference in the choice of his advisors. If some President wants to have someone in his cabinet, the presumption is that he ought to be able to do so, absent illegality or some sort of manifest incompetence. For the Republican Senators to hold these appointees up not for those reasons, but because they disagree with their policies, is just wrong; if this happened every time a new administration came into office, the opposition party would filibuster half the nominations and no one would never govern at all.

Second, what the Republicans are trying to do is to dictate to the President a matter that is purely his prerogative: deciding whether or not to unclassify documents. This is insane: it’s as though Obama threatened to withhold funding for the Senate unless Mitch McConnell fired some staffer he didn’t like. [UPDATE: Adam Serwer points out that it isn’t even optional: a judge has ordered that the memos be turned over. Oops: see here.]

And the combination — holding appointments hostage while trashing people’s reputations in order to keep Obama from making a decision he plainly has the right to make — is unconscionable.

I am not, in general, a big fan of saying: Republicans: you lost. Get over it. But in this case, I’m going to make an exception. The Republicans do not seem to be willing to allow the President to do things that are plainly his prerogative: appointing the reasonable, qualified, law-abiding people of his choice, deciding which documents should be declassified, and so forth. Any moment now they’ll threaten not to pass the budget unless he sets his air conditioner at their preferred temperature.

Two other things: first, I would hope that not every Republican will go along with the idea of filibustering these nominees. They don’t have to like them. They don’t have to vote for them. But they should recognize the difference between not supporting a nominee and being willing to filibuster him or her. Susan Collins, Olympia Snowe, Dick Lugar, and Orrin Hatch: I’m looking at you.

Second: this is one more piece of evidence that the Senate is broken. It needs to change its rules. I support keeping the filibuster for judicial nominations, which are for life. I can imagine a world with a sane opposition in which I would support keeping it generally. But this is not that world. At the very least, the rules need to be changed to force people who want to filibuster to actually be present in the Senate chamber.